Personal Appearance Discrimination and the Rise of “Tattoo-ism!”

June 29, 2015

Tattoos and body piercings have become increasingly prevalent in the U.S. — over 20% of adults are now tattooed. This number only will be increasing because 38% of millennials (born from 1981-1992) have tattoos, approximately half of whom have two or more, while 23% of millennials have body piercings.

More of a concern for employers, however, is that visible body art is increasing as well. This trend may be at odds with the image that an employer wishes to convey to its clients and customers, particularly given the negative stereotypes associated with body art: studies reflect negative biases against individuals with tattoos which include assumptions that they are less intelligent and attractive, and more rebellious. Not surprisingly, 60% of human resources professionals reported that visible tattoos would have a negative impact on an applicant’s chance of being hired, and 74% said the same thing about facial piercings.

Other than a few locales prohibiting “personal appearance” discrimination (discussed below), there is no overt protection for employees with body art. However, employers should be wary of inflexible prohibitions on visible body art. This is not just another dress code issue.

Litigation based on disputes over body art has arisen principally in the context of religious discrimination. For instance, in one case, a member of the Church of Body Modification – which, unsurprisingly, considers piercing a religious act – alleged discrimination after her employer, a retailer, required her to either cover a facial piercing or replace it with a clear insert; the court found in the employer’s favor, holding that the proposed accommodations were reasonable given its interest in presenting a “neat, clean and professional image.” Similarly, Swartzentruber v. Gunite Corp. upheld an employer’s requirement that an employee cover an offensive religious tattoo – a “Fiery Cross” in support of the Church of the American Knights of the Ku Klux Klan – even though other employees displayed inoffensive tattoos.

In such accommodation cases, courts will closely examine the facts on a case-by-case basis. Thus, not all employers have been successful. For instance, in EEOC v. Red Robin Gourmet Burgers Inc., the court ruled in favor of the employee; there was no undue hardship in allowing an employee to continue working with a 1/4” religious tattoo on his wrist, given its size and that the employer hadn’t objected to it for six months prior to termination.

While litigation based on other protected classes is far less common, employers should recognize that body art may relate to other protected classes. There is very real a disparity in who has body art – one study found that roughly 47% of Hispanic and 33% of African-American respondents had body art, both well above the national average. Thus, it is not hard to imagine that rigid policies against body art could disparately impact one or more protected classes.

Only a few local governments – including Washington, D.C.; Madison, Wisconsin; Santa Cruz, California; and Urbana, Illinois – currently prohibit discrimination based on “personal appearance,” which would include discrimination for visible body art. Yet, even there, courts have been deferential to employers defending claims of body art discrimination, so long as the employer can proffer a “reasonable business purpose” for the rule – such as to preserve the employer’s “conservative” image – and is flexible in accommodating the body art by permitting the employee to cover it. Sam’s Club, Inc. v. Madison EEOC, 668 N.W.2d 562 (Wis. App. 2003).

Employers need to think about this issue before it hits home.

First, blanket bans on body art should be avoided; limits on employees showing body art should be [A] based on more than a general aversion to body art (but a business plan to present a “neat, clean and professional image” in customer access jobs has been sufficient to date) and [B] flexible with options to offer reasonable accommodations to employees with visible body art – such as allowing them to cover the art – rather than taking an adverse action.

Second, any policy regarding visible body art should be consistently applied to avoid discrimination claims arising from disparate application, such as in a Massachusetts case where the employer prohibited women, but not men, from displaying tattoos.

Finally, decision-makers need to be educated to be sensitive to body art’s significance not only to the wearer (which may reflect a religious symbol or an ethnic symbol) but also to observant co-workers (African-American employee offered evidence of Confederate flag tattoo on white co-worker as one piece of evidence in his unsuccessful attempt to identify a pattern of racial harassment).

Jack London once said “Show me a man with a tattoo and I’ll show you a man with an interesting past.” But that was a hundred years ago. Today, show me an employee with a tattoo and I will show you a manager developing ulcers!

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Drug Testing Challenges Now Includes Emotional Distress Damages!

June 22, 2015

This week, in Aro v. Legal Recovery Law Offices, Inc., a Court of Appeals affirmed an intentional infliction of emotional distress award in favor of two employees who were pressured into taking a random, “on-demand” drug test. This is a message to employers on a national basis!

The facts

Prior to the drug test at issue, the employer provided employees a revised 2011 employee manual stating, in pertinent part, that the Company reserves the right to test employees for the use of illegal drugs or alcohol where an employee’s job carriers a risk of injury or accident, or after an accident or probable cause. The Plaintiffs were provided the revised handbook containing the drug test policy by e-mail. However, when they asked what changes were made to the handbook, management advised that they should read it and “figure it out” themselves.

In October 2011, the two Plaintiffs were unexpectedly required, along with all other employees, to take a drug test in a public bathroom. Both Plaintiffs initially resisted consenting to the drug test, at which point they were told that management would “figure out what to do” with them later, and that they would be suspended and sent home in the interim.

The Plaintiffs ultimately agreed to the urine test. During the test, someone watched them in the bathroom. One of the Plaintiffs later complained to management that he felt compelled to consent to the test due to “intimidation,” and that he did not feel comfortable providing the sample because of the “gestapo” posted outside. There was no evidence that the two Plaintiffs were individually suspected of drug use.

The Plaintiffs ultimately sued for breach of implied covenant of good faith and fair dealing and intentional infliction of emotional distress, among other claims. After bench trial, the trial judge awarded the Plaintiffs approximately $15,000 each for noneconomic damages. The employer appealed.

The law

The Court of Appeals affirmed the trial court’s ruling. First, the Court determined that the Workers’ Compensation rules in California do not prevent the Plaintiffs from recovering monetary damages for emotional distress. Generally, an emotional distress claim is preempted if it arose out of the ordinary scope and risks of an employment relationship. The Court reasoned that the random drug test administered in this case violated a fundamental right to privacy, which is protected by the California Constitution, and therefore exceeded the risks and expectations inherent in the employment relationship.

Next, based on the evidence presented at trial, the Court of Appeal concluded that the employer’s conduct was sufficiently extreme and outrageous to constitute an intentional infliction of emotional distress. First, there was no ample notice of a random drug test to the employees, and there was also no individualized suspicion of drug use by the two Plaintiffs. The Plaintiffs were asked to sign a consent form in front of other employees, and were threatened with suspension when they resisted. Moreover, evidence suggests that the Plaintiffs were subjected to the random drug test only after they complained to the employer of unpaid overtime. Finally, Plaintiffs’ testimony created ample evidence that the random drug test caused them to suffer anxiety and humiliation, with one of the Plaintiffs experiencing heightened blood pressure after the test.

The Takeaway

In analyzing workplace drug tests, California courts will continue to weigh employees’ privacy interests with the employer’s business necessity for conducting the test. Similarly, random drug tests in California will continue to face heightened scrutiny. Employers should periodically review their drug test policies and consult counsel to ensure compliance with state and local requirements in this regard.

I have encouraged employer’s over the years to focus drug testing based either upon a work related accident or reasonable suspicion. It is the safer course of action.


Fragrance Allergy Lawsuits Are On The Rise!

June 15, 2015

The issue of employee fragrance allergies can be very frustrating for employers. In Brady v. United Refrigeration, Inc., the plaintiff suffered from heightened sensitivity to perfumes, fragrant chemicals, and lotions. After she told her employer, the company attempted a number of accommodations:

  • Purchased a portable air cleaner for use at the plaintiff’s work station
  • Purchased a second portable air cleaner for the plaintiff after she broke the first one
  • Distributed several times a notice to all employees not to wear perfume, cologne or aftershave to the office
  • Purchased face masks for the plaintiff (which she later refused to wear)
  • Relocated an employee who had to wear medically-prescribed skin lotion
  • Cleaned a wall panel that plaintiff claimed had fragrances on it
  • Cleaned the rug around the plaintiff’s workstation

Still, the plaintiff could not attend work regularly — assume that regular attendance was an essential job function. And, ultimately, the company laid off the plaintiff because of her inconsistent attendance. So, the plaintiff sued, claiming, among other things, disability discrimination.

To prove disability discrimination, a plaintiff needs to establish, among other things, that she has a disability and that she can perform the job with or without reasonable accommodation. Here, the disability is a no-brainer, especially in light of medical evidence that the plaintiff provided her employer.

So, how is someone with an unpredictable work schedule qualified to do the job, especially when regular attendance is an essential job function? In this case, the Court determined that the employer, with all of those steps taken above to accommodate the plaintiff, may not have acted reasonably. Unbelievable! The Court stated:

“Here, Plaintiffs’ circumstances do not involve unexplained absences; rather, Plaintiffs’ condition is triggered by stimuli that are at least somewhat within Defendants’ power to control. If Defendants’ own no fragrance policies are not being sufficiently administered or enforced, as Plaintiff alleges, Defendants may have to accept that Plaintiff must take some time away from that environment.”

This decision, in my opinion, was a raw deal for the employer for a couple of reasons. First, depending on the size of the business, a fragrance-free workplace may be entirely impractical, given the number of people (employees and visitors) and other scent-producing products (cleaners, air fresheners, etc.) that could impact an individual who is sensitive to smells.  Second, the employer offered a face mask, which the Courts generally have previously deemed reasonable. The plaintiff even agreed to the mask, but then changed her mind. So, even if temporary leave, such as intermittent FMLA, is reasonable, the employee does not get to pick and choose which accommodation to take, insofar as there are other reasonable options such as wearing a mask.

So, what should employers do? Admittedly, requests for scent-free workplace can be difficult to accommodate. However, before responding with an automatic no, it is important for employers to entertain such a request in good faith and have an interactive dialogue to determine what the employer can reasonably do for the employee without creating an undue burden. Ask the employee for medical documentation and support for whatever accommodation she requests. Hopefully, there is a middle ground — maybe, telecommuting on occasion — that will allow the employee to perform the essential functions of the job.

But, if there is no reasonable accommodation and the employee cannot perform the essential functions of the job, then she is not qualified under the ADA, and you can end her employment.

Note: The outcome may vary from state to state so it is important that you speak with your legal counsel or HR professional before taking any action.


Off-duty emails and overtime-Can Employers Be Liable?

June 8, 2015

The issue of state and federal wage & hour compliance continues to haunt employers. There is an emerging issue whereby employers are relying on their non-exempt employees using their smartphones off-the-clock. In the past few days, this issue has picked up a ton of momentum. The Department of Labor’s Wage & Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.” In addition, “the word on the street” is that the Department of Labor, Wage & Hour Division, will likely raise the salary floor for exemption eligibility from $23,600 a year to $50,000 a year. This significant bump in the salary test will remove a large chunk of employees from many of the Fair Standards Labor Act’s key overtime exemptions. What does all this mean? It means that you need to take a long, hard, look at which of your employees you are requiring to connect when they are “off-the-clock.” If you are requiring your non-exempt employees to read and respond to emails after their work day “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not at a 1.5 overtime premium). I’m pretty certain that the Department of Labor consider this time compensable, but I’m not so sure. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time “minimal” and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email. Nevertheless, if you want to eliminate the risk over this issue, I suggest you consider a couple of steps:

  1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt versus non-exempt.
  2. Consider implementing a policy whereby your non-exempt employees do not email after a certain time (unless it is regarding not coming to work).

This issue is not going away any time soon, and illustrates the difficulty the law has keeping up with the stunning pace of technology. For California employers, well you know the answer,“who knows?” Just be careful.


Gossipping in the Workplace: A New Protected Category?

June 1, 2015

The question of what an employer can do about “gossiping” in the workplace continues to be one of debate. Gossiping lends itself to be stealing time from the employer, it can be spiteful and untrue, and now, for some states, it can be viewed as bullying. Now the National Labor Relations Board (NLRB) has weighed in on the issue and as usual its decision is not favorable to employers.

According to the NLRB, in  Sabo, Inc. d/b/a Hoodview Vending Co. and Assoc. of Western Pulp and Paper Workers’ Union, the employee had been terminated after mentioning of a help-wanted ad to a co-worker, and therefore the action of the employer was unlawful retaliation for engaging in “inherently concerted activity.” Just to be clear, Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.

You should also be aware that the NLRB recently expanded the class of activities falling under Section 7 protection to include certain topics that it deems “inherently” concerted – for instance, telling an employee not to discuss wages and threatening to discharge him if he did so was held to be “inherently concerted activity,” even though the alleged individual gripes to other employees were not meant to initiate or support group action.

Taking all of the above into consideration, in April, two of the three members of an NLRB panel reversed an administrative law judge’s decision, and found that an employee, who was fired for gossiping after a brief discussion with a co-worker about a help-wanted ad, was engaged in activity protected by the NLRA. The panel’s majority took the position that because the discussion – in which the employee voiced concern that her employer was planning to fire one of its employees – may have been premised on the issue of job security, it was “inherently concerted activity.” The employee was reinstated to her position.

The difficulty facing employers is when to take corrective action regarding gossiping. I would suggest the easy measure is to remember if the employee is engaging in idle gossip about another employee (non-work related) the employer can take steps to halt the behavior. On the other hand if the employee is discussing work related issues (wage & hour complaints as an example) then the employer needs to take a close look at the basis of the complaint but should not take any action to stifle the employee. Employers can always sit down with a disgruntled employee and help them work through whatever they are unhappy about.

My concern is that the NLRB’s recent decisions regarding such matters have been moving the bar, and indicates that the definition of “inherently concerted activity” may be broadening. I would strongly suggest that before employers take any action against an employee for “speaking” about issues or concerns that they consult with qualified individuals who can best advise them.